Beyond Strict Scrutiny: Forbidden Purpose and the “Civil Commitment” Power

Sex offender civil commitment (SOCC) is a massive deprivation of liberty as severe as penal incarceration. Because it eschews most of the “great safeguards” constraining the criminal power, SOCC demands careful constitutional scrutiny. Although the Supreme Court has clearly applied heightened scrutiny in judging civil commitment schemes, it has never actually specified where on the scrutiny spectrum its analysis falls. This article argues that standard three-tier scrutiny analysis is not the most coherent way to understand the Supreme Court’s civil commitment jurisprudence. Rather than a harm-balancing judgment typical of three-tier scrutiny, the Court’s civil commitment cases are best understood as forbidden purpose cases, a construct that is familiar in many areas of the Court’s constitutional analysis. But the Court’s civil commitment cases tie the search for punitive purpose to another genre of constitutional analysis, the application of the substantive boundaries on governmental power most commonly associated with the specific grants of federal power. In contrast to the normal conception of state power as plenary, limited only by the specific constraints of the bill of rights and the amorphous limits of “substantive due process,” the Court has posited a narrowly limited “civil commitment” power. The search for the forbidden purpose maps directly onto the inquiry into the limits of this discrete and special state power. Finally, the article argues that the forbidden purpose/discrete power analysis provides clarity on another vexing issue, the facial/as-applied distinction.